United States v. 2012-10-11 | 11-30307 | USA V. NILSON VALENCIA-RIASCOS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 11-30307
Plaintiff-Appellee, D.C. No.
v. 2:10-cr-06095-  RMP-1NILSON HERNEY VALENCIA-RIASCOS,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, Chief District Judge, Presiding
Submitted August 6, 2012*
Seattle, Washington
Filed October 11, 2012
Before: John T. Noonan, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Graber
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
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COUNSEL
Rebecca L. Pennell, Federal Defenders, Yakima, Washington,
for the defendant-appellant.
Shawn N. Anderson, Assistant United States Attorney, Yak-
ima, Washington, for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendant Nilson Herney Valencia-Riascos appeals the dis-
trict court’s denial of his requests to limit the courtroom pres-
ence of a law enforcement officer who was the prosecution’s
main witness. Defendant argues that the district court abused
its discretion and denied him due process by declining to
exclude the officer from the courtroom, by allowing the offi-
cer to sit at the prosecution’s table, and by declining to require
the officer to testify first.
We affirm. Federal Rule of Evidence 615 requires a district
court to permit a designated officer to be present during trial.
Any related decisions are discretionary. No abuse of discre-
tion or due process violation occurred in this case.
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Defendant was charged with assault on a federal officer by
physical contact, in violation of 18 U.S.C. § 111.1 The events
underlying the charge involved an altercation between Defen-
dant and Shawn Miller, an Immigration and Customs
Enforcement (“ICE”) agent. Miller’s work involved visiting
local jails to establish the immigration status of individuals
held in custody. Miller’s work brought him into contact with
Defendant, who was in custody at the Franklin County Jail in
Washington. At trial, Miller testified that, in the course of his
attempts to fingerprint Defendant, Defendant struck him on
the forearm and then struck him again, in the mouth, while
Miller was trying to subdue him.
At trial, Defendant objected, under Federal Rule of Evi-
dence 615, to Miller’s presence in the courtroom. In the alter-
native, Defendant asked that Miller be required to testify first
1That statute provides:
(a) In general.—Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with any person designated in section 1114 of this title
while engaged in or on account of the performance of official
duties; or
(2) forcibly assaults or intimidates any person who formerly
served as a person designated in section 1114 on account of the
performance of official duties during such person’s term of ser-
vice,
shall, where the acts in violation of this section constitute only
simple assault, be fined under this title or imprisoned not more
than one year, or both, and where such acts involve physical con-
tact with the victim of that assault or the intent to commit another
felony, be fined under this title or imprisoned not more than 8
years, or both.
(b) Enhanced penalty.—Whoever, in the commission of any acts
described in subsection (a), uses a deadly or dangerous weapon
(including a weapon intended to cause death or danger but that
fails to do so by reason of a defective component) or inflicts bod-
ily injury, shall be fined under this title or imprisoned not more
than 20 years, or both.
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and be barred from sitting at the prosecution’s table. The trial
court denied those requests, concluding that the prosecution
should be permitted to seat Miller at the table as a designated
“case agent.”
During trial, Miller testified as the only witness to Defen-
dant’s physical contact; none of the prosecution’s other four
witnesses saw the events underlying the charge. Miller testi-
fied at the close of the prosecution’s case-in-chief. The prose-
cution presented no physical evidence.
Defendant proposed instructing the jury not to treat testi-
mony of law enforcement personnel any more favorably than
the testimony of other witnesses. Although the trial court did
not give that particular instruction, it did give detailed instruc-
tions on credibility generally and included an instruction that
Defendant’s testimony should be treated like that of any other
witness.
Furthermore, the court and the prosecutor had probed dur-
ing voir dire for bias in favor of law enforcement. In particu-
lar, the prosecutor stated, during voir dire:
A few of you mentioned having relatives in law
enforcement that would make you believe, perhaps,
more so in the credibility of a law enforcement wit-
ness. . . .
Can you agree to put that all aside in this case? Do
you think you can put that aside and be fair and
impartial to both sides?
Can everyone agree to do that?
None of the seated jurors disagreed.
[1] The jury found Defendant guilty of the offense defined
by § 111(a), but did not impose § 111(b)’s enhanced penalty.
He timely appeals.
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Federal Rule of Evidence 615 provides:
At a party’s request, the court must order wit-
nesses excluded so that they cannot hear other wit-
nesses’ testimony. Or the court may do so on its
own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a
natural person, after being designated as the party’s
representative by its attorney;
(c) a person whose presence a party shows to be
essential to presenting the party’s claim or defense;
or
(d) a person authorized by statute to be present.
The advisory committee’s notes from the Rule’s 1972 pro-
posal and 1974 enactment make clear that subsection (b)
applies to investigative officers or “case agents” designated
on behalf of the prosecution in criminal cases. Fed. R. Evid.
615 advisory committee’s notes, 1972 Proposal (“As the
equivalent of the right of a natural-person party to be present,
a party which is not a natural person is entitled to have a rep-
resentative present. Most of the cases have involved allowing
a police officer who has been in charge of an investigation to
remain in court despite the fact that he will be a witness.”);
advisory committee’s notes, 1974 Enactment (“Many district
courts permit government counsel to have an investigative
agent at counsel table throughout the trial although the agent
is or may be a witness. The practice is permitted as an excep-
tion to the rule of exclusion . . . .” (citing S. Rep. No. 93-1277
(1974))).
Generally, “[w]e review for abuse of discretion a district
court’s decision regarding whether a witness should be
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excluded from the courtroom.” Milicevic v. Fletcher Jones
Imps., Ltd., 402 F.3d 912, 915 (9th Cir. 2005). At least twice,
we have considered the application of Rule 615 to investiga-
tive officers, and both times we have reviewed for abuse of
discretion and adopted an interpretation consistent with the
committee’s notes quoted above. See United States v.
Thomas, 835 F.2d 219, 222-23 (9th Cir. 1987) (finding “no
abuse of discretion” where the district court “permitt[ed] the
government’s investigating officer, . . . who testified as a wit-
ness, to sit at counsel table throughout the trial”); United
States v. Little, 753 F.2d 1420, 1441 (9th Cir. 1985) (“[W]e
find that the district court did not abuse its discretion in allow-
ing the case agent to remain at the prosecutor’s table.” (citing
cases from the Second and Fifth Circuits)).2
Under Thomas, which involved facts materially indistin-
guishable from those in this case, we must reject Defendant’s
claims. The district court in this case did not abuse its discre-
tion under Rule 615 by refusing to exclude ICE Agent Miller
or by allowing him to sit at the prosecution’s table.
[2] Defendant argues, though, that Rule 615 has been sup-
planted by the Justice for All Act of 2004/Crime Victims’
Rights Act (“CVRA”), 18 U.S.C. § 3771, and that the district
court failed to comply with the statute’s requirements. Sub-
section (a)(3) of that statute creates a right for crime victims
“not to be excluded from any . . . public court proceeding,
unless the court, after receiving clear and convincing evi-
dence, determines that testimony by the victim would be
2The First Circuit has adopted an even stricter approach, holding that
Rule 615 leaves a trial court with little discretion to exclude an investiga-
tive officer assisting the prosecution. See United States v. Machor, 879
F.2d 945, 953 (1st Cir. 1989) (citing Senate Report but distinguishing
Thomas, 835 F.2d at 223); see also United States v. Charles, 456 F.3d
249, 259 & n.3 (1st Cir. 2006) (citing committee’s notes); United States
v. Casas, 356 F.3d 104, 126 (1st Cir. 2004) (same). Our cases do not adopt
so narrow a view of our role in reviewing Rule 615 determinations.
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materially altered if the victim heard other testimony at that
proceeding.”
Defendant is mistaken. In United States v. U.S. Dist. Court
(In re Mikhel), 453 F.3d 1137, 1139 (9th Cir. 2006) (per
curiam), we concluded that the CVRA was wholly consonant
with Rule 615’s fourth exception, in subparagraph (d), prohib-
iting the exclusion of “ ‘a person authorized by statute to be
present.’ ”3 That is, the CVRA provides an alternative ground
for refusing to exclude an investigative officer under Rule 615
when that investigative officer is also a victim. For such wit-
nesses, compliance with either Rule 615(b) or the CVRA (as
incorporated by Rule 615(d)) is sufficient.
Finally, Defendant argues that Miller’s presence, particu-
larly his ability to testify after hearing the rest of the prosecu-
tion’s case-in-chief, violated Defendant’s due process rights.
In support, he cites several out-of-circuit cases. We are not
persuaded.
Defendant’s due process argument has two primary aspects.
First, he argues that Miller’s presence at the prosecution’s
table lent him an “aura” of credibility. Second, Defendant
suggests that Miller might have been able to change his testi-
mony because he could listen to Defendant’s opening state-
ment and the testimony of the other prosecution witnesses.
Under the circumstances, the first argument does not rise to
a due process violation. The prosecution did nothing more
than allow Miller to sit at the table; the prosecution offered no
explicit or implicit commentary on any testimony. Further-
more, the prosecution’s questioning during voir dire effec-
3Defendant argues his position by citing Mikhel’s statement that “the
CVRA abrogated Rule 615, at least with respect to crime victims.” 453
F.3d at 1139. But our reasoning in that case provides a limiting context to
that statement. We meant only that the CVRA abrogates Rule 615’s
default rule—“summary exclusion”— with respect to crime victims. Id.
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tively dispelled any possibility of implicit vouching. See
United States v. Wright, 625 F.3d 583, 610 (9th Cir. 2010)
(identifying “vouching and related misconduct in a broader
range of circumstances,” giving examples such as expressing
an opinion of the defendant’s guilt, denigrating the defense as
a sham, and implicitly vouching for a witness’ credibility
(internal quotation marks omitted)).
[3] With respect to Defendant’s more general due process
claims, we agree with the First Circuit that “no general consti-
tutional principle . . . render[s] it impermissible for a case
agent who was also the victim in the case” to sit at the prose-
cution’s table so as to “prevent the district court from exercis-
ing its discretion in favor of allowing the case agent to sit
there.” United States v. Charles, 456 F.3d 249, 260 (1st Cir.
2006). As discussed above, the district court complied with
Rule 615. Defendant does not challenge the constitutionality
of that rule, and under these circumstances we see no due pro-
cess violation.
In the alternative, assuming that the district court did err,
Defendant’s due process claims fail for a lack of prejudice.
See, e.g., id. at 258-60 (rejecting, in the absence of prejudice,
due process arguments similar to those made here). Defendant
suggests that Miller could have changed his testimony after
hearing the opening statements and the testimony of other
witnesses. But having reviewed those portions of the tran-
script for any potential advantage obtained by Miller by dint
of his ability to hear the earlier parts of the trial, we have
found none, and Defendant fails to identify any. If Defendant
could succeed by relying on nothing more than Miller’s pres-
ence at the prosecution’s table throughout the trial, compli-
ance with Rule 615(b) would amount to a per se violation of
due process.
[4] In closing, we observe that it may be a good practice
to require case agent witnesses to testify first,4 but we decline
4Defendant cites a Fourth Circuit case endorsing the idea that a case
agent witness “should ordinarily be called first so as to avoid giving the
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to adopt a presumption that would deprive the prosecution of
the opportunity to present its own case without interference.
AFFIRMED.
prosecution unfair advantage or the appearance that the prosecution is
being favored.” United States v. Frazier, 417 F.2d 1138, 1139 (4th Cir.
1969) (per curiam). But Frazier does not create a strict rule.
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